The First-tier Tribunal has recently ruled that a rooftop garden constitutes a storey, for the purposes of identifying a High Rise Building as defined in the Building Safety Act 2022. We have seen a fair few articles floating around about this ruling, but we wanted to lay out the facts and ‘set the storey straight’ (sorry but we had to)…
The First-tier Tribunal, F-tT for short, handles and rules on legal disputes in the property sector. It is typically made up of a panel of 3 people who are appointed to rule on leasehold disputes. More recently however, the F-tT have been given jurisdiction to rule over some matters relating to the Building Safety Act 2022.
The Building Safety Act 2022 (BSA) sets out the criteria for a storey when calculating whether a building is a Relevant Building (7 storeys or 18m) in relation to this act. The height is measured from the lowest ground level adjacent to the building, up to the floor slab of the top floor (excluding roof plant rooms). The government have even issued a handy diagram to help building owners and managers nationwide measure their buildings correctly.
Despite this guidance, the Ft-T provided an interesting verdict in a recent case, Smoke House & Curing House, 18 Remus Road, London E3 2NF (LON/00BG/HYI/2023/0024). They determined that a roof top garden should be counted as a storey, despite the fact that the area was not fully enclosed. It has sparked some controversy, and larger corporate landlords have been re-evaluating their buildings to establish if this determination affects their properties.
This decision, if supported by government, will have a significant effect on properties nationwide, bringing even more buildings into scope for an already gargantuan task of regulation for the Building Safety Regulator, as well as significant cost for leaseholders of those properties. At this stage the advice issued by government is to stay the course and adhere only to current guidance.
The Ft-T has since commented that they do not have the jurisdiction to rule on what constitutes a Relevant Building. It seems that even the Ft-T acknowledges that they do not always get it right, and this highlights the importance of following the set guidance rather than being caught out by potential misinterpretations.
We would therefore encourage anyone with concerns about this recent determination to discuss the implications with a suitably qualified professional or refer to the existing guidance issued by government. If you have any concerns or would like any assistance with the requirements of the Building Safety Act 2022, feel free to get in touch.
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